Why Colorado Needs Firearms Preemption

Number:
99-P
Date: Mar. 11, 1999

Synopsis: House Bills 1305 and 1316
specify that all gun laws be made by the state legislature, not by city or
county governments. These bills are essential to protect the constitutional
right to keep and bear arms of the people of Colorado. Careful examination of
existing local laws show that they do not protect public safety, but instead
place unjustifiable burdens on the exercise of constitutional rights. In this
Backgrounder, we detail some (but by no means all) of the unjustifiable gun laws

Aurora
ammunition ban:An Aurora ordinance
states that any ammunition coated or treated with Teflon or similar synthetic
compound is unlawful.

Many
target shooters use some types of Federal brand ammunition, which has basic lead
bullets. Some more expensive versions of the Federal bullets are coated with
Teflon. This coating is provided on this readily-available commercial ammunition
to keep the pistol from having too much lead build-up in the barrel from
higher-velocity bullets. The Teflon reduces the abrasion as the bullet passes
through the barrel, and thereby reduces how much lead is abraded off the bullet
and deposited in the barrel.

This
normal ammunition--which is banned by Aurora--is not the infamous "cop-killer"
extremely-penetrant ammunition. Such ammunition is banned by federal law, and
the federal definition has nothing to do with teflon. Rather, "armor piercing
ammunition" is a handgun bullet "constructed entirely" from "tungsten alloys,
steel, iron, brass, bronze, berylium copper, or depleted uranium." 27 Code of
Federal Regulations § 178.11.

The
Aurora "teflon" ban is a perfect example of how local governments lack the
expertise to craft appropriate firearms laws. The federal ban (which, by the
way, was supported by the National Rifle Association) focuses on the types of
bullet materials which give a bullet armor-piercing capability. The Aurora ban
does nothing about high-penetration bullets. Instead, the Aurora law merely bans
a type of bullet coating.

When the
Colorado legislature enacts gun laws, the legislature usually brings in experts
of all types to craft technically appropriate legislation. But the Aurora
government apparently enacted a law based on little more than what some
councilperson had heard from a television program.

Thus, it
is now illegal in Aurora to possess ordinary Federal brand ammunition, which has
no more penetrating power than any other commercially-available ammunition, and
which certainly will not penetrate a police jacket.

The
Federal ammunition is perfectly legal in all other areas of the State, and can
be purchased over the counter by anyone legally capable of buying pistol
ammunition. Yet, if a citizen were to bring such ammunition to a target shooting
range in Aurora, he could be arrested.

[Note:
The Colorado General Assembly has passed legislation which fixes this problem
for people traveling between government jurisdictions. The problem remains for
intra-jurisdiction travel.]

Denver
juvenile "weapons" ban:
Denver's juvenile weapons ordinance is now touted as the reason for Denver's
recent drop in homicides--although the decline in crime in Denver is no greater
than the trend in most other large American cities in the same period. And the
statewide juvenile handgun law (enacted three months after the Denver ordinance)
would remain in place, and restrict most handgun possession by juveniles.

But as
detailed in a
1993 Independence Institute Issue Paper,
the Denver ban goes far beyond any reasonable form of gun control. In Denver, it
is currently illegal to allow someone under 16 years old to even touch a gun,
even during a safety training class.

It is
even illegal for a father and son to drive to a hunting trip in the Yampa Valley
with an unloaded rifle in the rack of a pick-up truck.

Read the
"Spot the Crimes" op-ed attached to the end of this Issue Backgrounder, and
decide whether Denver's ordinance is an asset to public safety--or a poorly
written exercise in public relations from politicians who hold the Second
Amendment in complete contempt.

Englewood: The forfeiture ordinance
states that "In every case where a person is charged with a violation involving
a weapons offense, he/she shall forfeit to the City such dangerous or illegal
weapon." This does not say convicted, but simply charged.

Lakewood:It is unlawful to carry a
firearm where vinous, spirituous or malt liquors are sold, but this ordinance
does not apply to peace officers or proprietors. This would make it illegal for
a concealed-carry permit holder even to walk into a liquor store and buy a
bottle of wine for dinner that night. It is also illegal for a person with a
concealed handgun permit to go into a grocery store, since most grocery stores
sell beer. Likewise, it is illegal for a person with a concealed handgun permit
to have dinner with her spouse in any restaurant which serves liquor--even if
the permit holder never drinks a drop. Thus, the average permit holder is in
danger of arrest for the perfectly innocent acts of going to a grocery store or
going out to dinner.

Thornton:Colorado law currently allows
persons to carry a handgun in their place of business for lawful protecting, or
in their automobile for protection for lawful protection "while traveling."
(C.R.S. § 18-12-105.) Like Denver, Thornton drastically narrows the statewide
law, and allows business owners or travelers to carry only when there is a
direct or immediate threat! Thus, proprietors of small businesses, or travelers,
are deprived of their right to self-protection. Thornton and Denver apparently
expect that small business owners will be able to ask robbers to wait a minute
with the robbery, so that the owner can lawfully retrieve her handgun.

Constitutional priorities:The purpose
of state government is not to make local government officials happy. Rather, the
purpose of government, the Declaration of Independence teaches, is to protect
human rights, which come from God, not the government. In our Colorado
Constitution, the rights of the people are more important than the powers of
government. Immediately after Article I of our State Constitution (defining the
boundaries of the state), Article II sets forth the Bill of Rights, beginning,
"In order to assert our rights, acknowledge our duties, and proclaim the
principles upon which our government is founded, we declare:" Thus, the Bill of
Rights precedesthe creation of any of the branches of state government
(Articles III through VI). Local governments do not come until Article XIV
(counties) and Article XX (home rule cities and towns).

If local
governments censored speech or discriminated against minorities, the Legislature
would act to halt those abuses. Likewise, when local governments attack the
right to arms, or take property without due process, the Legislature is also
obligated to act. Every resident of Colorado is entitled to enjoy the full
benefits of the Colorado Constitution's Bill of Rights in every square inch of
the state. That is why we have a state government. Preemption legislation such
as House Bills 1305 and 1316 is not an interference with local law making,
because local governments have no lawful authority to infringe the Colorado
Constitution's Bill of Rights. Preemption legislation is long overdue, to remove
from the people of Colorado the burden of intolerant, ignorant, oppressive, and
illegal "laws."

Prepared by Bill Dietrick and David B. Kopel, for
the Independence Institute

March 10, 1999

SPOT THE CRIMES

By Donald DeKieffer

In 1993,
the Denver City Council adopted two ordinances which criminalize many everyday
activities. See if you can spot all the newly-created crimes.

Mom:
"Oh, she's over at Mrs. Dempsey's with the girls from the Church. You know,
since Jack died, Mrs. Dempsey has had a hard time cleaning up that back lot of
theirs. She has emphysema and just can't get out much any more."

Dad:
"That back lot is totally overgrown. I'll bet the city inspectors told her to
clean it up."

Mom:
"That's right, but Mrs. Dempsey doesn't have much money, so the girls
volunteered to help. She went over there with your rake, weed-whacker, and
machete. I told her to be sure to clean them up when she gets back."

Billy:
(entering the kitchen) "Hi everybody!"

Dad:
"What are you so excited about?"

Billy:
"Oh, Dad, geez. I'm going to Scout Camp tomorrow. Can't a person get a little
excited now and then?"

Dad:
"Just checking. By the way, are you entering the marksmanship competition
again?"

Billy:
"Sure. I came in second last year, but that was because we had to use the .22
rifles they gave us. This year they said we could bring our own rifles if they
were safe."

Dad:
"All right. But let's run through some of the safety lessons again."

Billy:
"We have to -- again?" We've been all through that about a million times."

Dad:
"Yes, again. A million and one can't hurt. Bring the .22 here from the gun
cabinet in the den. Here are the keys. The bolt is in the bottom drawer. You
have to use this other key for that."

(Billy
leaves and returns with a .22 rifle and a bolt)

Dad:
"All right, the first thing I want you to do is to clean and lubricate the
rifle."

Billy:
"But Dad, I just cleaned it last week and it hasn't been fired since then!"

Dad:
"Clean the rifle. I'll watch."

(Billy
proceeds to clean the rifle)

Dad:
"OK, now I want you to get the trigger lock. It's in the top drawer of the gun
cabinet. You still have the keys, don't you?"

(Billy
returns with trigger lock)

Dad:
"Now, whenever you are not using this rifle at camp, I want it to be locked in a
gun case. And I want you to have this trigger lock on it and I
want the gun case locked in the Camp Director's safe. Here are the keys to the
trigger lock and the case. Wear them around your neck on a bead chain."

Billy:
"But all the camp makes us do is to lock it up in the Director's office. Why do
I have to do all these other things?"

Dad:
"Because having a firearm is a responsibility. And because if you don't, I'm not
going to let you take the rifle."

Billy:
"Geez, Dad. OK already."

(June
Arnold enters kitchen from outside)

June:
"I'm bushed. I never saw such huge weeds. It took four of us two hours just to
chop them down."

Mom:
"Did you put away all the tools?"

June:
"Yeah, they're in the shed."

Mom:
"Did you clean them like I told you?"

June:
"Oh, I forgot -- be right back."

Billy:
"She looks hot. I think I'll be a good brother and help her out."

June:
"Billy, I bought you a present for camp. Here."

Billy:
(Opening present): "A Bowie Knife! Thanks, Sis. All the guys at Camp had one of
these last year. All I had was that dinky Swiss Army knife."

(Knock
on back door -- policeman in doorway)

Bob:
"May I help you, Officer?"

Policeman: "Are you Robert Arnold?"

Bob: "I
am. Is there something wrong?"

Policeman: "We have received a complaint from one of your neighbors that you are
a dangerous criminal. From my personal observation, I can confirm that you have
committed several serious crimes, each punishable by a half-year in jail. You
have the right to remain silent....."

Identify
the crimes.

Answers:

Under
1993 Denver ordinances, it is a crime for parents to allow their children to
possess "weapons" or to permit them to have access to any firearm whatsoever.

Dangerous "weapons" include knives more than 3" long (the machete and the Bowie
knife). Also, allowing minors to clean guns and have access to keys to gun
cabinets constitutes a crime.

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Nothing written here is to be construed as
necessarily representing the views of the Independence Institute or as an
attempt to influence any election or legislative action. Please send
comments to Independence Institute, 727 East 16th Ave., Denver, Colorado 80203 Phone 303-279-6536. (email)webmngr @ i2i.org